Sloan Valve Co. v. Zurn Indus., Inc., No. 10 C 204, Slip Op. (N.D. Ill. Mar. 5, 2014) (St. Eve, J.).

Judge St. Eve denied defendants’ (collectively “Zurn”) motion to exclude plaintiff Sloan Valve’s (“Sloan Valve”) expert in this patent litigation involving dual mode flush valves for plumbing fixtures.  Plaintiff’s expert conducted what he called a “survey,” but was in fact an investigation.  The expert, a 27 year veteran of the FBI, coordinated an investigation of approximately 200 bathrooms across the country which plaintiff believed would have either Sloan or Zurn plumbing fixtures.  The expert’s agents photographed specific fixtures using an app that time and location stamped them. 

The Court held that the fact that the expert used the term “survey” did not change the fact that it was an investigation, not a survey as the term is used in the legal context.  And Zurn did not dispute that the expert was qualified to conduct such an investigation.  Furthermore, the investigators did not interview anyone, they just took pictures.  So, there were no hearsay concerns.

Finally, Zurn’s other concerns did not warrant exclusion, although the could be addressed on cross-examination:

  1. The 200 sites were not randomly selected and were selected by Sloan;
  2. The sites were “overwhelmingly” public buildings; and
  3. The investigators did not investigate every bathroom at each site and did not adequately investigate the bathrooms that they did enter.